Extradition of Nazi War Criminals

The term "laws of war" refers to the rules governing the

actual conduct of armed conflict. This idea that there actually exists
rules that govern war is a difficult concept to understand. The simple
act of war in and of itself seems to be in violation of an almost
universal law prohibiting one human being from killing another. But
during times of war murder of the enemy is allowed, which leads one to
the question, "if murder is permissible then what possible "laws of
war" could there be?" The answer to this question can be found in the
Charter established at the International Military Tribunals at
Nuremberg and Tokyo:
Crimes against Humanity: namely, murder, extermination,
enslavement, deportation, and other inhumane acts committed against
any civilian population, before or during the war, or persecutions on
political, racial or religious grounds in execution of or in
connection with any crime within the jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country where
perpetrated. Leaders, organizers, instigators, and accomplices
participating in the formulation or execution of a common plan or
conspiracy to commit any of the foregoing crimes are responsible for
all acts performed by any persons in execution of such plan.1 The
above excerpt comes form the Charter of the Tribunal Article 6 section
C, which makes it quite clear that in general the "laws of war" are
there to protect innocent civilians before and during war.
It seems to be a fair idea to have such rules governing armed
conflict in order to protect the civilians in the general location of
such a conflict. But, when the conflict is over, and if war crimes
have been committed, how then are criminals of war brought to justice?
The International Military Tribunals held after World War II in
Nuremberg on 20 November 1945 and in Tokyo on 3 May 1946 are excellent
examples of how such crimes of war are dealt with. (Roberts and Guelff
153-54) But, rather than elaborate on exact details of the Tribunals
of Nuremberg and Tokyo a more important matter must be dealt with.
What happens when alleged criminals of war are unable to be
apprehended and justly tried? Are they forgotten about, or are they
sought after such as other criminals are in order to serve justice?
What happens if these alleged violators are found residing somewhere
other than where their pursuers want to bring them to justice? How
does one go about legally obtaining the custody of one such suspect?
Some of the answers to these questions can be found in an analysis of
how Israel went about obtaining the custody of individuals that it
thought to be guilty of Nazi War Crimes. Not only will one find some
of the answers to the previously stated questions, but also one will
gain an understanding of one facet of international law and how it
works.
Two cases in specific will be dealt with here. First, the
extradition of Adolf Eichmann from Argentina, and second, the
extradition of John Demjanjuk from the United States of America. These
cases demonstrate two very different ways that Israel went about
obtaining the custody of these alleged criminals. The cases also
expose the intricacy of International Law in matters of extradition.
But, before we begin to examine each of these cases we must first
establish Israel's right to judicial processing of alleged Nazi war
criminals.
To understand the complications involved in Israel placing
suspected Nazi war criminals on trial, lets review the history of
Israel's situation. During World War II the Nazis were persecuting
Jews in their concentration camps. At this time the state of Israel
did not exist. The ending of the war meant the ending of the
persecution, and when the other countries discovered what the Nazis
had done Military Tribunals quickly followed. Some of the accused war
criminals were tried and sentenced, but others managed to escape
judgement and thus became fugitives running from international law.
Israel became a state, and thus, some of the Jews that survived the
concentration camps moved to the state largely populated by people of
Jewish ancestry. Israel felt a moral commitment because of its large
Jewish population and set about searching for the fugitive Nazi war
criminals.
The situation just described is only a basic overview of what
happened. The state of Israel views itself as the nation with the
greatest moral jurisdiction for the trial of Nazi war criminals, and
other states around the Globe agree with Israel's claim. (Lubet and
Reed 1) Former Israeli Attorney General Gideon Hausner was interested
in confirming Israel as the place for bringing to justice all those
suspected of genocide of Jews. Hausner sought to confirm Israel's
status by proposing to the United States that they extradite Bishop
Valerian Trifa to Israel for trial as a war criminal. Israel was
reluctant to support Hausner's proposal, which resulted in delaying
the extradition process and thus gave Trifa the time needed to find a
country willing to give him residency. Portugal granted Trifa
residency and thus Hausner's proposal was in vain.
Israel, sometime after losing their opportunity of obtaining
Trifa, decided that Hausner's idea of establishing Israel as the place
to bring Nazi war criminals to trial was a good one, which lead them
to seek the extradition of John Demjanjuk from the United States. The
Wall Street Journal reported:
Israel's request for the extradition of a suspected Nazi war
criminal living in the U.S. . . appears to be a test case that could
determine whether Israel pursues other suspects . . . The decision to
seek the extradition of Mr. Demjanjuk follows months of negotiations
between U.S. and Israel officials about specific cases and the broader
question of whether Israel wanted to go through with extraditions
requests . . . Gideon Hausner, who prosecuted Eichmann, said Israel's
decision to ask the U.S. to extradite Nazis for trial [in Jerusalem]
is an important step. "This creates the opportunity for at least tacit
admission of Israel's special position with regard to crimes against
Jews anywhere in the world," he says.2 After much negotiations the
United States arrested Demjanjuk in November of 1983. On April 15,
1985 United States District Judge Frank Battisti ruled in favor of
Demjanjuk's extradition. After the Sixth Court of Appeals affirmed
Battisti's ruling and the Supreme Court denied Demjanjuk's petition
for certiorari, Demjanjuk arrived in Israel on February 27, 1986.
(Lubet and Reed 3) It would appear, from what has been presented, that
the extradition process is simple. But this conclusion is not correct
because there are a few issues that make extradition problematic. One
such issue that complicates the process of extradition is that of
identification and proof.
Leading Nazi war criminals such as Adolf Eichmann and Klaus
Barbie offer no real dispute in the matter of identification, but war
criminals that were not so prominent leave room to question whether
they truly are who they are accused of being. The type of criminal
cases that most of us are familiar with are those that attempt to
prove whether a defendant committed a particular act or acts.
Extradition cases involve two distinct questions: 1) The prosecution
must prove that the defendant is actually the person sought by the
requesting country. 2) The court must find probable cause to believe
that the accused committed the offense.3
In Demjanjuk extradition case Judge Battisti concluded that
identification "requires only a threshold showing probable cause."4
How this threshold is achieved can be done through the aid of a
photograph comparison with the accused, fingerprints, or an
eyewitness.
In the matter of probable cause the appellate court used the
formulation of "any evidence warranting the finding that there was
reasonable ground to believe the accused guilty."5 Furthermore it has
been indicated that the extradition process incorporates these rules:
Probable cause to support extradition may be based entirely on
hearsay, and the defendant cannot present exculpatory evidence, which
the presiding judge would have to weigh or balance.6 It must be kept
in mind that the extradition process does not attempt to prove the
innocence or guilt of the accused but rather whether the individual is
whom he or she is accused of being. The accuracy of the identification
is an issue that is resolved during the course of the actual trial,
and not in the extradition process. Simply identifying Demjanjuk does
not make him extraditable, the requirement of criminality has to be
met as well. Concerning the requirement of criminality the Stanford
Journal of Law said the following:
The rule of dual criminality generally provides that
extradition may be had only for acts extraditable by treaty and
considered criminal in both the requested and requesting
jurisdictions...Since sovereigns rarely define crimes using identical
phrases and since treaty terms may be ambiguous or out of date, a
substantial jurisprudence has developed interpreting and applying the
requirement of criminality.7 In the case of Demjanjuk Israel was
charging him with "the crimes of murdering Jews, [which are] offenses
under sections 1 to 4 of the Nazi and Nazi Collaborators (Punishment)
Law."8 The precise phrase, "murdering Jews," is not mentioned in the
United States-Israel Extradition Treaty, also the previously mentioned
phrase does not exist in current American penal statute.
But, according to the American rule of dual criminality a way
away around this small detail can be found:
The law does not require that the name by which the crime is
described in the two countries shall be the same; nor that the scope
of the liability shall be coextensive, or, in other respects, the same
in the two countries. It is enough if the particular act charged is
criminal in both jurisdictions.9 It is clear to see that the
previously mentioned American rule on dual criminality gives the
United States the option of recognizing "murdering Jews" as simply to
mean "murder." Therefore, the requirement of dual criminality in the
case of John Demjanjuk is satisfied.
The issues of identification and probable cause, along with
the requirement of criminality help to demonstrate the complexities
involved in the extradition process. Two more brief issues to consider
regarding Demjanjuk's extradition are the questions of
extraterritoriality and extratemporality.
Extraterritoriality in relation to the case of Demjanjuk would
have only been an issue had another country along with Israel
requested the extradition of John Demjanjuk. In the case where two
countries are requesting the same individual the Secretary of State
would have to weigh the various forums' contacts in order to determine
which request to honor. Israel has unofficially been recognized as the
desirable nation for bringing Nazi war criminals to trial. Germany,
Poland, and the U.S.S.R., for example, all waived their potential
requests for the extradition of Eichmann in favor of trial by Israel.
(Lubet and Reed 44-45)
In the matter of extratemporality, the trial judge presiding
over the Demjanjuk case ruled that murder was not barred by lapse of
time because the United States recognizes no statue of limitations for
that offense. (Lubet and Reed 58) Even if murder were to be barred by
lapse of time Demjanjuk could still have been extradited because of
his misrepresentation of his wartime activities during his immigration
process. Demjanjuk could have then been viewed as fleeing from justice
and thus no statute of limitations would have been extended to him.
The extradition process of Demjanjuk because it only involves two
countries would appear to be an easy process to complete. Even when
countries are cooperative, as were the United States and Israel,
concerning extradition it is clear that issues such as identification
and probable cause, requirement of criminality, extraterritoriality,
and extratemporality demonstrate how complex the process of
extradition can be. Certainly, Israel could have avoided the
complexities and length of time involved in extradition and gone about
obtaining Demjanjuk the same way they obtained Eichmann, but that
method, although it was effective, caused a bit of a commotion in the
international community.
Adolf Eichmann of the Reich Security Main Office was the
alleged strategist behind the so-called "final solution of the Jewish
question."10 There have been roughly six million murders attributed to
him, so it is easy to understand why concentration camp survivors
spent fifteen years searching for him. Perseverance paid off when
Eichmann was found in Argentina living under an assumed name. A group
of volunteers, some of whom were Israeli citizens acting without the
support or direction of the Israeli Government, removed Eichmann from
Argentina and brought him to Israel where they turned him over to
government so that a trial could take place. So far it can be seen
that this method of extradition is quicker and less complicated than
the Demjanjuk method of extradition. There is no need for
identification or probable cause, requirement of dual criminality,
extraterritoriality, or extratemporality. The process is as simple as
it sounds; Eichmann was found and Eichmann was removed. Although the
method for extradition of Eichmann was quick it did result in leaving
Argentina very upset.
Argentina felt that Israel's exercise of authority upon
Argentine territory was an infringement on its sovereignty. Israel
defended itself by claiming that Eichmann left Argentina voluntarily,
and the Israeli Government claimed that the group that removed
Eichmann was working under its own direction and not that of the
Israeli Government. Israel even went so far as to issue a letter
expressing their regrets for the actions taken by the free acting
group:
If the volunteer group violated Argentine law or interfered
with matters within the sovereignty of Argentina, the Government of
Israel wishes to express its regrets.11
Argentina's rejoined that even if Eichmann left Argentina on
his own free will that Israel should be responsible for the actions of
the private persons who were Israeli citizens. One simple point to be
made here in reply to Argentina's argument is that only some of the
persons involved with the Eichmann removal were Israeli citizens.
There is a small possibility that the persons who were Israeli
citizens were only mere accessories to the act, guilty of only
marginal involvement. Furthermore, the responsibility of states in
connection with the acts of private persons is predicated upon
territorial jurisdiction and not the bond of nationality. (Svarlien
136) Israel has no jurisdiction within Argentina and thus has no power
over the actions of its citizens within Argentina's borders. The sole
power of jurisdiction in this matter lays in the hands of Argentina,
and since the claim that Eichmann left voluntarily has neither been
shown to be false or expressly denied it appears that no real
Argentine law has been violated.
Argentina went on further to argue that Israel's note
expressing their regret in the matter of Eichmann's removal can be
viewed as an apology, which constitutes an admission of guilt. The
phrasing of the note of regret sent by Israel is embedded clearly with
conditional terms, which makes it difficult, if not impossible, to
derive an admission of guilt from it. At no time in the note does
Israel praise or approve the volunteer group actions, and neither does
Israel try to justify what was done. If anything can clearly be
derived from the note it is that Israel in fact does regret the
actions of the volunteer group, and possibly even condemns their
behavior. But, Argentina's claim that the note is an admission of
guilt is hardly an argument worth pursuing. Argentina's strongest
argument against the abduction of Eichmann is that Israel chose to
detain Eichmann after he had been captured.
Argentina claimed that even though the abduction of Eichmann
was an act committed by private citizens, the Israeli Government's
decision to detain and try Eichmann made them an accessory. This point
is Argentina's strongest argument because it is known that the
jurisdiction of the court reaches only as far as the borders of the
state of which it is in. If the court had no jurisdiction in the
nation of the original seizure, then by what right does that court
have to detain and try the accused? The only problem with Argentina's
final argument on the Eichmann abduction is that proof of forcible
seizure or arrest must be presented. Since the abductors were acting
of their own free will it is doubtful that they arrested Eichmann in
the name of Israel. It is, however, quite possible that the abductors
used some force in the removal of Eichmann, but again, use of force
must be proved to give validity to Argentina's final argument.
Argentina filed a complaint with the United Nations Security Council
under Article 33 claiming that Israel violated international law,
which created an atmosphere of insecurity and distrust jeopardizing
the preservation of international peace. (Silving 312) After the
presentation of arguments and debates before the Security Council the
follow declarations were made:
violation of the sovereignty of a Member State is incompatible
with the Charter of the United Nations; repetition of acts such as
that giving rise to this situation would involve a breach of the
principles upon which international order is founded creating an
atmosphere of insecurity and distrust incompatible with the
preservation of peace. The "adjudicative" part of the resolution. 1.
Declares that acts such as that under considerations, which affect the
sovereignty of a Member State and therefore cause international
friction, may, if repeated, endanger international peace and security;
2. Requests the Government of Israel to make appropriate reparation in
accordance with the Charter of the United Nations and rules of
international law.12 The important part of the resolutions that the
United Nations reached is the phrase "if repeated." It is almost as if
the United Nations said, "this time we will let the infringement go,
but next we will take action."
Considering the unique character of the crimes attributed to
Eichmann, and since such crimes are, for the most part, universally
condemned, Israel's breach of international law seems to have been
tolerated. It is quite possible that had the person who was removed
been someone other than Eichmann the result of the United Nations
Security Council would have been much different.
The two cases of extradition expose the complexities of
international law. In the case of Demjanjuk, Israel went about the
extradition process in the correct manner, which resulted in the
issues of identification and probable cause, requirement of
criminality, extraterritoriality, and extratemporality. When Israel
went about obtaining Adolf Eichmann the issues dealt with were ones
resulting from the method of Eichmann's apprehension. Eichmann's
removal from Argentina brought to light the issue of violation of a
country's sovereignty. In both cases because the accused were being
charged with Nazi war crimes, specifically genocide, there cases seem
to get a little leeway and are not dealt with as extremely as other
cases might be. Nevertheless, their cases demonstrate how one goes
about bringing to justice those charged with violating the laws of
war.
---
FOOTNOTES
1 Roberts, Adam, and Richard Guelff, ed. Documents of the Laws of
War. (Oxford: Clarendon Press, 1982.) 155.
2 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 3.
3 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 15.
4 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 15.
5 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 18.
6 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 18.
7 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 20.
8 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 23.
9 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 23.
10 Silving, Helen. "In Re Eichmann: A Dilemma of Law and Morality"
The American Journal of International Law 55 (1961):311.
11 Silving, Helen. "In Re Eichmann: A Dilemma of Law and Morality"
The American Journal of International Law 55 (1961):318.
12 Silving, Helen. "In Re Eichmann: A Dilemma of Law and Morality"
The American Journal of International Law 55 (1961):313.

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